Family Law Corner: Child Support Arrears May Add Up to Felony Time? You Betcha, Levi!

The Palin family is never far from the headlines and now it is Bristol Palin’s turn.  In November, it was reported that her baby daddy, Levi Johnston, had filed for joint custody of the couple’s child, Tripp.  Palin responded by requesting payment of child support arrears in the amount of $67,000, a finding that Johnston is underemployed and, of course, requesting the Court deny Johnston’s request to increase his custody share.  Palin is further requesting that the Court find that, under Alaskan law, Johnston has committed a felony by owing so much in child support arrears.

Palin and Johnston were last in court for child support in 2010 when Johnston made a lump sum payment of back support and was ordered to pay $1,750 per month going forward.  Given Palin’s current claimed arrears, it appears she is claiming Johnston has made little or no support payments since that 2010 hearing.

Part of the order Palin is requesting is a finding that Johnston is underemployed.  This finding is not just about making Johnston look bad, but to have income imputed to Johnston so that his support increases.  Under Family Code §4058(b) and In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, child support can be based on what someone can earn rather than what he or she is actually earning if the Court finds that the person had the opportunity and ability to work and it is in the child’s best interests to impute that income.  If Palin can show that Johnston has the ability and opportunity to earn more and is choosing not to for some reason, then the Court may impute income to him and raise his support obligation.

Getting more support won’t do Palin any good if Johnston continues to not pay.  Alaska, like all states, offers criminal penalties for non-payment of support.  California Penal Code §270 makes it a misdemeanor to not support a child punishable by up to one year in jail and a fine of up to $2,000.  Alaska also makes nonpayment a misdemeanor, but also has a felony option.  If the payor of support has not paid in 24 months or more or owes $20,000 or more, then the payor may be found guilty of a felony and face up to 5 years in jail.  If Palin’s claims about nonpayment prove true, then it appears that Johnston may be guilty of felony nonsupport (Alaska Stat §11.51.120) and is probably regretting filing that custody motion given what’s at stake now.